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The application included allegations about two individuals. Particular 8 alleged that Gary Berman, a director of a company operating the premises, was unsuitable because he had not managed the premises properly or provided sufficient management and control ([3]). Particular 9 alleged that Jackie Laurens, described as a nominee, failed to provide sufficient management and control at Barcode and had previously failed to do so at Salt Nightclub ([4]). These were allegations in the application, not findings ultimately made against either person.

In April 2008, the parties presented agreed facts and asked the Tribunal to approve an agreed settlement. Berman and Laurens had not then been joined. The Tribunal declined to approve the agreement at that stage because, if proved, the allegations could be serious and should be investigated. It joined Berman and Laurens because it considered that orders against them might be appropriate ([5]).

By the October hearing, Berman and Farrell had filed statements. The applicant, through Sergeant Eager, said it did not intend to call evidence contradicting those statements ([6]–[7]). The Tribunal considered that this left it unable to prove the allegations against Berman or Laurens. It also noted that, according to the statements, Laurens was not the nominee or manager in charge at the relevant time; Farrell held those positions ([10]).

The final orders were made by consent and with the Tribunal’s approval. Ground (c) of the application was withdrawn. Barcode’s on-premises liquor licence was cancelled under s 91(1)(b)(i), effective from 5 December 2008, with leave to apply for an extension of time. The respondent was ordered to pay a $20,000 fine under s 91(1)(b)(iv). The joinder of Berman and Laurens was revoked, conditional on Berman and Farrell filing affidavits or declarations in similar terms to their statements by 16 October 2008 (Orders 1–4).

Why the court decided this way

The central procedural issue was whether Berman and Laurens should remain parties when the applicant would not call evidence supporting the allegations against them. The Tribunal said it possessed an inquisitorial power, but explained that its practical exercise depended on parties locating and calling witnesses. It did not have the resources to find witnesses and call them itself in a case like this ([8]).

That practical constraint mattered because the applicant had made clear it would not call evidence to prove the allegations. The Tribunal said that, in those circumstances, it had “no option but to accept” the evidence of Berman and Farrell ([8]). It then reasoned that adverse findings against Berman or Laurens were unlikely ([9]).

The Tribunal also considered the content of the statements. It said the statements indicated that Laurens was not the nominee or manager in charge at the relevant time, and that Farrell held those roles ([10]). The reasons do not make findings about Farrell’s previous record beyond what was in the material. The Tribunal considered that it would be difficult, if not impossible, to lay blame for the June 2007 events on Berman and probably Laurens on the evidence before it ([10]).

The Tribunal mentioned a further practical concern about Laurens: the only information available to it was that she had gone overseas and had not returned, so orders against her might be futile ([11]). This appears as an additional consideration, not the main evidentiary basis for revoking joinder.

The initial refusal to approve the settlement and the later approval of amended orders are not inconsistent on the account given in the reasons. In April, the Tribunal considered investigation of the allegations appropriate because of their potential seriousness. By October, the applicant was not going to prove those allegations against Berman and Laurens, and the filed statements gave the Tribunal a basis to consider adverse findings unlikely. In those circumstances, it approved the amended agreed orders and revoked the joinder orders ([5], [7]–[12]).

The decision does not set out a general test for approving settlements, nor does it determine whether the allegations were true. Its reasoning is tied to the evidentiary position and the Tribunal’s stated practical limits in this proceeding.

Before and after state of the law

The reasons do not describe a change in the law, announce a new legal test, or discuss earlier authorities. They identify the proceeding as an inquiry requested under s 90 of the Liquor Control Reform Act 1998, and the orders refer to the cancellation and fine powers in s 91(1)(b)(i) and s 91(1)(b)(iv) respectively (Orders 1–3).

The decision’s stated procedural point is narrower. The Tribunal described itself as having inquisitorial power but said that, in practice, it relied on parties to locate and call witnesses. It did not have resources to find witnesses and call them itself in a case like this ([8]). The reasons therefore show how the Tribunal approached its role in this particular proceeding, rather than establishing a general rule that an applicant’s failure to call evidence must always result in joinder being revoked.

The outcome also illustrates the distinction between the allegations against individuals and the orders made against the corporate respondent. The Tribunal revoked the joinder of Berman and Laurens, but made the agreed orders against Barcode (King Street) Pty Ltd. Those orders included licence cancellation and a $20,000 fine (Orders 2–4). The reasons do not state that the Tribunal made adverse findings against Berman or Laurens, and no such finding should be inferred from the allegations or from the fact that they had previously been joined.

The judgment does not provide a survey of the law before the decision or explain the broader statutory criteria for disciplinary orders under ss 90 or 91. It also does not discuss any later amendment or judicial treatment. A “before and after” account of legal doctrine cannot be established from this judgment alone. What can be stated from its text is the Tribunal’s practical explanation of its evidentiary limits and the orders it made in this proceeding.

Key passages with plain-English translation

At [5], the Tribunal said that the allegations, if proved, could be serious and should be investigated. In plain English, the Tribunal did not initially consider the agreed settlement sufficient to conclude the matter without further scrutiny. That was the reason it declined to approve the agreement at that stage and joined Berman and Laurens. It was not a finding that the allegations were true.

At [8], the Tribunal stated: “This Tribunal has an inquisitorial power. However, that power is somewhat difficult to exercise when the Tribunal is relying on others to call witnesses.” The plain-English point is that the Tribunal recognised an ability to inquire, but said that ability had practical limits where it depended on parties to produce witnesses.

The same paragraph says that the Tribunal did not have the resources to find witnesses and call them if none were called to prove the allegations. It then concluded that it had “no option but to accept” the evidence of Berman and Farrell ([8]). In context, that explains why the applicant’s decision not to call evidence was decisive to the Tribunal’s assessment of the allegations against the joined parties.

At [9], the Tribunal said it considered adverse findings against Berman or Laurens unlikely. This is the Tribunal’s assessment of what could be made on the evidence and procedural position then before it. It is not a determination of their general suitability or conduct outside this proceeding.

At [10], the Tribunal referred to the statements indicating that Farrell, rather than Laurens, occupied the nominee and manager roles at the relevant time. The Tribunal also noted the limited information about Farrell’s record. This passage shows that the Tribunal considered who was said to have held the relevant roles, while acknowledging gaps in the material.

Finally, [12] records the Tribunal’s conclusion that it was appropriate to revoke the joinder orders and make the amended agreed orders. Order 4 made the revocation conditional on affidavits or declarations from Berman and Farrell by 16 October 2008. The order therefore did not simply record an unconditional revocation: it specified a filing condition.

What fact patterns trigger this precedent

The judgment is most relevant to a procedural situation with these features: a tribunal proceeding includes serious allegations against joined individuals; the applicant declines to call evidence to prove or support those allegations; the tribunal relies on parties to locate and call witnesses; and the tribunal considers adverse findings unlikely on the evidence available. Those features appear together in the Tribunal’s reasons at [5]–[10].

The reasoning may also be relevant where a tribunal has inquisitorial powers but explains that its practical ability to investigate is constrained by limited resources or dependence on parties. The decision’s point is not that inquisitorial powers are absent. Rather, it is that the Tribunal considered its power difficult to exercise in the circumstances described ([8]).

The factual detail about Laurens’s whereabouts is narrower. The Tribunal said that orders against her might be futile because the information available was that she had gone overseas and had not returned ([11]). The decision does not establish a general rule about joinder based on a person being overseas. It is one circumstance the Tribunal mentioned in this case.

The judgment should not be read as deciding that an applicant’s decision not to call evidence always requires joinder to be revoked, or that a respondent company’s agreed disciplinary orders determine the position of individual directors, nominees, or managers. The Tribunal’s reasoning refers to the particular statements, the applicant’s stated position, the available resources, and the proposed orders in this proceeding ([7]–[12]).

How later courts have treated it

This judgment does not identify or discuss any later decisions. The supplied text therefore does not establish whether later courts or tribunals have followed, distinguished, applied, or criticised it. No later treatment can be reliably stated from the judgment itself.

It is also important to describe the decision within its stated form. It is a VCAT decision by Senior Member Robert Davis in the Occupational and Business Regulation List, with reasons recorded as an edited transcription of oral reasons given at the end of the hearing. The decision records the outcome and the Tribunal’s reasoning in this particular matter; it does not cite precedent or purport to conduct a review of the law ([Reasons preface]; [1]–[12]).

A researcher assessing later treatment would need to consult sources beyond the text provided here. On this judgment alone, the accurate position is that no precedent relationships are identified in the reasons. That does not establish that the decision was never cited later; it means only that the supplied judgment contains no account of later citations or treatment.

Still-open questions

Several matters are not resolved by the reasons. First, the judgment does not explain the detailed statutory test under s 90 for conducting an inquiry or the full criteria governing the orders available under s 91. It identifies those provisions and records the orders made, but does not set out a comprehensive statutory analysis.

Second, the Tribunal did not determine whether the allegations against Berman or Laurens were factually true. It concluded that adverse findings were unlikely given the evidence and the applicant’s decision not to call evidence, then revoked the joinder orders subject to filing requirements ([7]–[12]). The reasons therefore do not resolve the underlying factual allegations.

Third, the reasons do not explain what would have happened if the required affidavits or declarations were not filed by 16 October 2008. Order 4 makes revocation subject to filing, but the text does not state any further consequence or record what later occurred.

Fourth, the decision does not explain the factual or statutory basis for the $20,000 fine or the cancellation date beyond identifying the relevant provisions and recording the agreed orders (Orders 2–3). It also does not give further detail about the withdrawn ground (c).

Finally, the reasons do not establish how broadly the Tribunal’s comments about its inquisitorial power apply. The Tribunal expressly linked its practical limits to its reliance on parties to find and call witnesses and its lack of resources to locate them in a case like this ([8]). The judgment does not address different tribunal settings, different statutory powers, or cases where the tribunal has other means of obtaining evidence.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.